What Is the Implied Consent Law?

Posted on Apr 24, 2017 11:37am PDT

So you've been pulled over on suspicion of drunk driving. The officer demands that you do a breathalyzer test to show that you're able to operate a vehicle. You, being a generally-informed person, know that breathalyzers aren't totally accurate on every occasion, and you have no idea when the device you're using was last calibrated.

You also know that you had a couple drinks a few hours earlier, and while you feel fine to drive, you have no idea how you'd do on a field sobriety or breathalyzer test. You believe you might pass, but that's a high-stakes gamble.

On the other hand, if you refuse to do the test, it'll make you look guilty. It won't look good if you end up going to trial. You also heard from a friend that you're not actually required to do breathalyzer tests. You politely tell the officer that you do not consent to a breath test. He then arrests you to take you to the station for a blood test.

You may not have been proven guilty of DUI, but you have proven guilty of violating the implied consent clause.

(For the record, your hypothetical friend is wrong).

What Is Implied Consent?

In general terms, implied consent is consent that you've granted due to the nature of your circumstances, presence, or the facts surrounding your situation. For example, if you go to a restaurant, you have consented to paying for the food you've received. They don't have to make you explicitly state that you'll pay for food beforehand—that's a given thanks to implied consent.

What Is DUI with Implied Consent?

When it comes to DUI cases, implied consent is in a clause you agreed to when you received your driver's license. The clause states that by using the driver's license, you consent to submitting to a breath test when an officer suspects that you're driving drunk. A version of this clause exists in all 50 states, and in many cases includes a year's suspension of your driver's license just for refusing. In many cases, it also states that your refusal will be admissible in court as evidence.

Who Does Implied Consent Apply To?

Any motorist who was operating a vehicle at the time of their arrest. Any type of licensed motorist is subject to submitting to a breathalyzer test—motorcycle drivers, passenger car drivers, and commercial truckers in particular. If you have a driver's license of any kind, you are required to submit to a DUI test.

Can You Refuse a Blood or Breath Test for DUI Stops?

The implied consent clause included with your driver's license issuance makes you automatically required to provide breath or blood for your DUI test. So, you can't legally refuse to submit. Obviously, you can still refuse, but you'll end up facing the legal consequences when your case goes to trial.

Here are some of the consequences of refusing:

Facing a separate criminal offense

6-12 months' license suspension

Over a year of suspension for repeat offenders

Car insurance cancellation (not guaranteed but likely)

Enhanced penalties for a DUI conviction

That said, there is some strategic advantage to refusing the test. For one, while refusing to submit to a test can be used against you in court, it's comparatively weak evidence in lieu of actual BAC results or breathalyzer results. For another, your attorney may be able to challenge your DUI on grounds of reasonable suspicion (see last month's blog for details). If a person is reasonably sure that they'll fail a test—either due to drinking, having a medical condition, or just having poor coordination—they might prefer to risk a conviction of violating implied consent than to risk certain DUI conviction.

(It should be mentioned that this is in no way official legal advice—you should always consult an attorney for any questions regarding your individual case).

Whatever your situation, it's always better to be informed of your rights. You do not have the right to refuse a blood or breath test if you're suspected of DUI—however, you do have the right to an attorney if you elect to refuse, and they'll be able to advise you on the best course of action for your case.